New Eagle Gas Coal Co v. Burgess

• Citation: 111 S.E. 508
• Decision Date: 21 March 1922
• Docket Number: (No. 4334.)
• Parties: NEW EAGLE GAS COAL CO. v. BURGESS.
• Court: Supreme Court of West Virginia

111 S.E. 508

NEW EAGLE GAS COAL CO.
v.
BURGESS.

(No. 4334.)

Supreme Court of Appeals of West Virginia.

March 21, 1922.

[111 S.E. 508](Syllabus by the Court.)

Error to Circuit Court, Nicholas County.

Action by the New Eagle Gas Coal Company against Matt Burgess in detinue for the possession of one electric generator and a steam engine. Verdict for defendant, plaintiff's motion for new trial denied, and plaintiff brings error. Reversed, and new trial awarded.

Alderson & Breckinridge, of Summerville, and Wm. T. Lively, of Charleston, for plaintiff in error.

G. G. Duff, of Summerville, and H. C. Hill, of Lockwood, for defendant in error.

MEREDITH, J. This is an action in detinue for the recovery of the possession of one electrical generator and a steam engine. The jury returned a verdict for the defendant. The court refused to set aside the verdict and grant plaintiff a new trial, and the case is here on writ of error.

The defendant claims title to the property through his purchase at a sale under an execution, and plaintiff attacks the validity of the judgment upon which the execution was issued. The Eagle Gas Coal Company, a corporation, in 1917, was the owner of a coal mining leasehold in Nicholas county, under a lease from the Federal Coal Company, and had a mine in operation. On October 6, 1917, it leased 4 houses from Benjamin Darlington, for the term of 13 months, the rent for the term to be $240, $120 to be paid November 1, 1917, and the balance to be paid in monthly payments of $10 each. The $120 was paid, and, about December 15, 1917, Darlington conveyed these 4 houses to the Bank of Gauley, and the bank appointed him agent to collect the rents. The houses appear to have been occupied by employees of the Eagle Gas Coal Company. No further rents appear to have been paid. In August, 1918, the Eagle Gas Coal Company sold and conveyed its mining leasehold to another corporation, called New Eagle Gas Coal Company. The purchaser did not assume any of the selling company's debts, nor does it seem to have taken over all the seller's property. It took possession of the mining property and operated it till about March 1, 1919. The two corporations were not only distinct so far as their organizations were concerned, but no one interested in the one was in any wise interested in the other. There was no interlocking as to stockholders, directors, or officers.

The purchasing company in the fall of 1918 bought and had shipped for its plant the electric generator and steam engine in controversy. This property was unloaded on a private siding not owned by the company, where it remains. About March 1, 1919, when the plant shut down, the New Eagle Gas Coal Company employed J. V. Bailey to look after its mules, to collect its rents, and to make collection of some claims. About March 5, 1919, the Bank of Gauley sued out a distress warrant against the Eagle Gas Coal Company for rent. Just what this was levied on does not appear, but some sort of levy was made, and the constable, who had the warrant, demanded and obtained the keys to the houses of the company from Justice Bailey. Justice Bailey was then employed by the constable to look after the property for him, and he says that thereafter he did not represent the New Eagle Gas Coal Company, unless it would be as justice of the peace in collecting some claims due it.

The...